Rountree v. Cohn-Bock Co.

• Citation: 73 S.E. 796,158 N.C. 153
• Parties: ROUNTREE et al. v. COHN-BOCK CO.
• Decision Date: 21 February 1912
• Court: North Carolina Supreme Court

73 S.E. 796

158 N.C. 153

ROUNTREE et al. v. COHN-BOCK CO.

Supreme Court of North Carolina

February 21, 1912

Appeal from Superior Court, Gates County; Cline, Judge.

Action by L. A. Rountree and another against the Cohn-Bock Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

A deed of standing timber held to convey the timber which the purchaser may remove within the prescribed time.

A clause in a deed of standing timber held to require the purchaser, claiming an extension privilege, to notify the grantor, and to pay or tender the stipulated amount.

This is an action to restrain the defendant from entering upon certain land and cutting timber thereon. The defendant claims under a certain timber deed, executed by the plaintiffs on the 9th day of September, 1904, to the Gay Lumber Company which conveyed certain timber on said land and contained the following provisions: "The said parties of the second part shall cut and remove the timber hereby bargained and sold and conveyed within five years from date of contract. And should said second parties be unable to remove said timber within the time above specified, they shall have further time to remove said timber as they may require, not exceeding three years, upon payment to said parties of the first part of a sum equal to six per cent. per annum for the additional three years of time required on the purchase price as above stated. The said parties of the second part, their heirs or assigns, shall have power, and are hereby authorized at any time during period last aforesaid, to enter upon the lands above described for the purpose of cutting, removing or doing whatsoever they may elect with the timber hereby conveyed, and are hereby authorized and empowered to build and construct such roads, tramroads or railroads over and across the above described lands or any other lands owned by them, and may use such brush, trees and undergrowth upon said lands as they may need in the construction of said road, tramroads and railroads and are hereby empowered to exercise full, perfect and absolute ownership and control of the same to prosecute each and every person cutting or removing said timber, or in any manner interfering with it, whereby its growth will be affected, or its value depreciated." There was no tender of any amount to the plaintiffs under the extension clause in the deed until more than five years after the execution thereof. ...